Linking formal and informal justice: What can we learn from other public services?

Should international donors support informal justice providers? And if so, should they also aim to strengthen the linkages between formal and informal justice? These are key questions that keep coming up but lack a satisfactory answer. This blog suggests that it might be helpful to look at other sectors in which linkages between state and non-state actors are already in place. The Democratic Republic of Congo is a case in point, where health and education are largely provided by non-state actors such as churches, civil society, and international actors, whereas the state is responsible for setting the regulatory framework. Service providers in these sectors act in a complementary rather than competitive manner and hence are able to benefit from each other. Thinking out-of-the-box might be needed to pilot innovative constructions of justice provision.

Policy makers at the international level are increasingly interested in the question of how to strengthen linkages between formal and informal justice. But why should such linkages be promoted in the first place? Would they be beneficial? The question is especially pertinent in countries in which the institutional capacity of the formal justice sector and of the broader state is low; in these settings, non-state actors fill the gaps that are left by the state (cf. Swenson 2016). Our findings from a 2-year NWO-WOTRO-funded research project on access to justice in the Democratic Republic of Congo show that most people refrain from consulting statutory justice providers.

We are all aware that informal justice is there to stay, whether outsiders feel it is desirable or not, whether it is well-functioning or not, whether state justice providers like it or not. In many instances it is simply because informal justice is seen by the population as the best option among others. Not only in remote areas, where the state apparatus is far away, but also in urban areas, where state justice, in theory, is available at a short distance.

It is often argued that the informal justice sector is especially vibrant in countries in which there is low institutional capacity of the formal justice sector and of the broader state (Swenson 2016). At the same time, these are often countries with significant donor interest. For donors it might not always be easy to circumvent the state and to work with non-state actors. It might also not be sustainable in the longer term. If we think about how to engage informal justice, a decisive factor is to think about how we engage formal justice, or the ‘state’, at the same time, whether this is at the local, provincial or national level.

To reflect on this question, we should think out-of-the-box and look at ways in which other services are delivered. First of all, let us assume that justice is a basic public service; one of the services that is supposed to be delivered by the state, like education, health, or water. We all want to have good public services available for everybody, but we also feel that this should be done as much as possible without external support. One way to do so is to work towards stronger states, not in the least place because working with informal justice only risks creating or furthering tensions between formal and informal.

In actuality, public services show that effective informal service providers can consolidate public trust in formal structures. It is generally assumed that good public services contribute to the legitimacy of governance structures and hence can contribute to stability in a country. This happens when the state is responsible for the provision of these services. Interestingly, it also happens – to some extent – when non-state actors provide these services. Take for instance the health sector in the Democratic Republic of Congo. This is a sector in which, since colonial times, non-state actors such as churches and NGOs play a very large role. In certain regions non-state actors run more than half of the health centres (Aembe Bwimana, forthcoming). One of the remarkable findings of a survey carried out in the east of the DRC by colleagues from Wageningen University shows that if people experience better health services, they tend to become more positive about the state as well (Ferf et al. 2016, as part of the Secure Livelihoods Research Consortium). One of the explanations given for this is that people feel the state should be responsible for this public service. While this is not exactly the case in reality, the state does have a presence in the health sector. Churches and NGOs operate a large portion of the health centres, but the Congolese state is in the driver’s seat in providing a regulatory framework to the health care providers and people expect the state to take up this role and responsibility.

Why should we care about this? Because there is an important lesson to be learned. Put very bluntly, two things are important for donors in considering engagement with informal justice: 1) Does it help to improve the justice that is provided to the end-users? 2) Can the intervention be made sustainable without long-term external support? To ensure the latter, we’ll need to think about ways in which the state is not simply circumvented but rather strengthened. What we can take from the example in the health sector is that we should engage with informal justice providers, for a number of reasons that have been set out elsewhere [SL1] (see for instance Toomey 2010; Swenson 2016 who argue that non-state legal systems are frequently resorted to as they are fairly accessible in terms of geography, finances and language. Moreover, they often have higher degrees of legitimacy than statutory justice providers). At the same time, we should not forget to also take the state into account, for instance by supporting the state in taking a visible regulatory position, in monitoring the functioning of the non-state providers and helping these providers to act in accordance with certain agreed upon standards. This could help to improve the functioning of informal justice providers and to tackle some of their shortcomings.

Would informal justice providers accept this solution? Well, of course we should ask them, but based on consultations that we recently held among a large number of local chiefs in the east of Congo, I am quite confident that they would be open to collaboration, as long as they can benefit by becoming better-functioning, stronger, and more respected local leaders. In fact, many of them argued that the state should consider them more seriously as providers of justice.

So my answer to the question ‘Should donors engage with informal justice providers?’ would be: Yes, engage, but do not neglect the role of the state!